Harden v. State

• Decision Date: 12 November 1981
• Docket Number: 62192,Nos. 62191,s. 62191
• Citation: 287 S.E.2d 329,160 Ga.App. 514
• Parties: HARDEN v. The STATE.
• Court: Georgia Court of Appeals

Page 329

287 S.E.2d 329

160 Ga.App. 514

HARDEN v. The STATE.

Nos. 62191, 62192.

Court of Appeals of Georgia.

Nov. 12, 1981.

Rehearing Denied Nov. 30, 1981 in No. 62192.

Certiorari Denied Jan. 7, 1982.

Myra H. Dixon, Moultrie, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Benjamin H. Oehlert III, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Appellant was indicted alternatively for motor vehicle theft and theft by receiving the same stolen automobile. The jury returned a verdict finding appellant guilty of motor vehicle theft. Case No. 62191 is appellant's pro se appeal from the judgment of conviction. Case No. 62192 is appellant's appeal from the denial of this motion for new trial, filed by his counsel. In the interest of judicial economy the two appeals are consolidated for review. See Daniel v. State, 248 Ga. 271, 282 S.E.2d 314 (1981).

1. At the close of the state's evidence appellant moved for a directed verdict of acquittal as to the motor vehicle theft count on the ground that the state's proof that appellant possessed the vehicle some 11 days after it was stolen was insufficient evidence of "recent possession" to authorize a conviction on that alternative count. Counsel for the state disagreed. After some discussion between the trial court and counsel for appellant and for the state, the following colloquy occurred.

The Court: "Well, I'll reserve my ruling on that. It is something that troubles me. I may well direct it after the jury comes back, but I'm not prepared to do it at this time."

Counsel for the state: "I'll tell you what, if you want to do it, that is all right with me."

The Court: "All right. Direct a verdict. You ready to proceed?" The jury returned to the courtroom but before the trial was resumed, the counsel for the state requested a bench conference. Apparently at that bench conference the counsel for the state requested an opportunity to discuss appellant's motion for directed verdict further. The trial court then agreed to hear from the state on appellant's motion at a later time. The trial thus proceeded without the jury being informed that appellant had moved for a directed verdict or the trial court's disposition of that motion. At the conclusion of all the evidence and while the jury was outside the courtroom, the court was reminded that the state had yet to be afforded the opportunity to discuss further the matter of appellant's motion for directed verdict. Thereupon the following discussion took place:

Counsel for the state: "Judge, assuming I can give you cases that will convince you that motor vehicle theft should be charged, then I would suggest a charge on recent possession would be in order."

The Court: "All right. If we do have that, then I will charge on auto theft and recent possession." A recess was taken and the state's counsel returned with cases supporting his original argument that possession of property 11 days after it was stolen was sufficiently "recent" to authorize a charge on and a conviction of motor vehicle theft. As the result, the trial court "withdrew" the direction of the directed verdict and informed counsel that a charge on motor vehicle theft would in fact be given. No specific objection was raised by appellant's counsel at that time to the trial court's "withdrawal" of the directed verdict and, as a consequence, the principles of law relevant to the motor vehicle theft count were given and the jury's verdict of guilty as to that count was returned.

On appeal appellant asserts the trial court's actions in "withdrawing" the original grant of a directed verdict and in submitting to the jury the issue of appellant's guilt of automobile theft placed him twice in jeopardy for the same offense. If the record before us demonstrated that appellant had in fact been "acquitted" of the charge we would find merit in the argument that appellant's conviction was obtained in violation of his constitutional rights. While we cannot condone or countenance the actions of either the trial court or the state's counsel in this case, we are compelled to hold that those actions did not result in a violation of appellant's fifth amendment double jeopardy rights.

It is appellant's contention that he was "acquitted" of the charge when the trial court, with the seeming approval of the state, orally granted the motion for directed verdict at the close of the state's case. However, this oral statement by the trial court was not a final judgment of appellant's acquittal of the charge. "What the judge orally declares is no judgment until it has been put in writing and entered as such [Cits.]" Williams v. City of LaGrange, 213 Ga. 241, 242(1), 98 S.E.2d 617 (1957). The defendant in a criminal case cannot claim that the trial court's oral pronouncements from the bench have the finality of a judgment. See Conley v. Pope, 161 Ga. 462(3), 131 S.E. 168 (1925). Compare State v. Germany, 246 Ga. 455, 271 S.E.2d 851 (1980) (interpreting Code Ann. § 27-1404 which provides that "[A]t any time before judgment is pronounced, the prisoner may withdraw the plea of 'guilty' ..." (Emphasis supplied.) Nor was the trial court's "directed verdict" ever published in open court in the presence of the jury which ultimately adjudicated appellant's guilt. "A verdict is not a verdict in law until received and published in open court... [Cit.]" Irvine v. Grant, 15 Ga.App. 269(1), 82 S.E. 819 (1914). Since the trial court's oral grant of appellant's motion was not a final adjudication of his acquittal, appellant cannot assert that the instant appeal is, in essence, an appeal by the state from the grant of a directed verdict in a criminal case. See generally Smith v. Sorrough, 226 Ga. 744, 177 S.E.2d 246 (1970). Compare State v. Warren, 133 Ga.App. 793, 213 S.E.2d 53 (1975). The only final verdict appearing in the record before us is that of the jury, a verdict which was not returned in proceedings conducted subsequent to a final adjudication of appellant's acquittal. It follows that appellant's contention that his conviction was obtained in violation of fifth amendment prohibition against double jeopardy is meritless. "The record does not show a termination of the case and an attempt to retry the defendant and thereby place [him] in jeopardy again for the same crime." Sessions v. State, 131 Ga.App. 379, 380, 206 S.E.2d 99 (1974).

2. Appellant next asserts that he was denied the right to a fair trial. In support of this enumeration appellant asserts, in essence, that he was denied the right to defend against the motor vehicle theft charge when the trial court "withdrew" the directed verdict on that charge at the close of the evidence.

The transcript before us demonstrates that when the directed verdict was "withdrawn," during the charge conference, appellant's counsel merely objected to that procedure and did not specifically request that any ameliorative actions be taken to counteract any prejudice to the defense which might be occasioned by that withdrawal. Having determined that it was not reversible error to withdraw the oral grant of the motion for directed verdict, the question then becomes whether appellant should have requested curative relief from the trial court when it became clear that the issue of motor vehicle theft would...